WhatsApp, CCI Case Moves To July 21

Decision on the year-long legal spate of Meta (earlier known as Facebook) and Competition Commission of India (CCI) has not been taken in the recent hearing as the Delhi High Court adjourned the hearing to July 21, 2022. 

The appeal was made by Meta and its subsidiary WhatsApp to overturn CCI’s probe into the messaging app WhatsApp’s 2021 privacy policy, as per ET. 

This is the second appeal made by Meta and its subsidiary in May 2021 after a single-judge bench’s order dismissed their plea to stop a CCI probe into its privacy policy. 

In the recent hearing, a division bench of Justices–Poonam Bamba and Rajesh Shakdher adjourned the matter after WhatsApp’s counsel, senior advocate Harish Salve, said the Personal Data Protection Bill is yet to be passed by the Parliament.

Salve added, “WhatsApp had given an undertaking to the central government that it would not enforce the privacy policy till the Bill was cleared.” 

In January 2021, the CCI looked into WhatsApp’s privacy policy after allegations that the messaging app’s privacy policy allowed sharing a large amount of data with its parent company Meta (then, named as Facebook) thus, violating the Competition Act 2000. 

On March 24 2021, CCI ordered an investigation into WhatsApp’s privacy policy update for its conduct that is prima facie ‘exclusionary’ and ‘exploitative’. Then, the competition watchdog said that the probe needs to be completed in 60 days.

Following this, the Ministry of Electronics and Information Technology (MeitY) filed an affidavit in the Delhi High Court reiterating that WhatsApp’s privacy policy violated the Information Technology Rules (IT Rules), 2011 on five counts. 

The affidavit, a copy of which has been reviewed by Inc42, said that the privacy policy fails to specify the types of sensitive user data being collected, fails to notify users of such collection, does not let them review or amend the information, withdraw consent later, or provide a guarantee against non-disclosure to third parties. 

In the recent hearing, the division bench of Delhi High Court also said an order issued in January this year, extending the time for WhatsApp to respond to CCI notice, would remain in force.

In January this year, the Delhi High Court division bench cited the pending Data Protection Bill while adjourning the matter to March 30. 

“The data-sharing policy seemed exploitative and could have exclusionary effects, which have the potential to undermine the competitive process and create further barriers to market entry,”  CCI had said in its order. 

WhatsApp and its parent company had also questioned the CCI’s order asking them to provide certain information for the purpose of the inquiry conducted by it.

WhatsApp presently has the largest user base in India comprising over 400 Mn users. It has enabled that the privacy update for users of business services on its application would not affect end-to-end encryption.